Sessions goes to Supreme Court on DACA

Fulfilling a pledge made earlier this week, the U.S. Justice Department formally asked the Supreme Court Thursday to hear its appeal of a lower court’s decision which blocked the Trump administration from rescinding the Deferred Action for Childhood Arrivals program.

In a 33-page argument, the DOJ requested that the Supreme Court make a “rare” move to bypass the 9th Circuit Court and rule on the legality of the decision prior to the end of the court’s term in June, The Hill reported.

DOJ attorneys argued that, even if the case was on an expedited review in the 9th Circuit Court of Appeals, obtaining a ruling would take months. Waiting for the ruling, DOJ attorneys contended, would “require the government to retain in place a discretionary policy that sanctions the ongoing violation of federal law by more than half a million people.”

“Even if the losing party were to seek certiorari immediately following the 9th Circuit’s decision, this court would not be able to review the decision in the ordinary course until next Term at the earliest,” the attorneys wrote.

The DOJ filed the request with the Supreme Court a week after a federal district court judge in San Francisco ruled that DACA, a program established during the Obama administration, must remain active and the Department of Homeland Security must continue to accept renewal applications from illegal aliens who are currently enrolled in the program.

Attorneys from the DOJ argued that the September decision to rescind the DACA program was a “policy enforcement” choice that is within the powers of a federal agency and cannot be reviewed under the Administrative Procedure Act.

“Even if DHS’s prospective denial of deferred action were reviewable, the individual respondents could not obtain such review unless and until a final order of removal were entered against them,” they wrote.
“And even if it were reviewable now under the APA, the decision to rescind the DACA policy was not arbitrary and capricious. The Acting Secretary opted to wind down DACA after reasonably concluding that the policy was likely to be struck down by courts and indeed was unlawful.”

Urging the court to hear its appeal, the DOJ cited a 2016 4-4 ruling by an eight-justice Supreme Court in a case challenging former President Barack Obama’s immigration policies. The decision left in place a 5th Circuit Court ruling which prohibited the Obama administration from expanding DACA and blocked the Deferred Action for Parents of Americans and Lawful Permanent Residents, which would have permitted illegal aliens who are parents of U.S. citizens or lawful permanent residents to remain in the U.S. for three years and apply for work permits.